For those of you who still believe the U.S. Constitution's First Amendment guarantees freedom of speech, your faith is about to be shattered by a new law that likely will lead to, in essence, "no speech zones." And, as is the case with most freedom-robbing legislation, this law is being justified in the name of security or, more appropriately, security for a select few.
The measure, called the Federal Restricted Buildings and Grounds Improvement Act, was signed into law by President Obama March 8 after it passed in the Senate following minor modifications made in the House. Critics are knocking the measure because, essentially, it restricts protests near the president.
According to a "fact check" of the legislation, the current measure actually updates an original law passed in 1971 that "already restricted access to areas around the president, vice president and any other governmental official protected by the Secret Service, according to Thomas.gov," the Florida Times-Union reported.
The old version made it a federal crime to "willfully and knowingly" violate certain restricted areas, such as the White House grounds and the vice president's residence and grounds. The updated law changes it to just "knowingly," and there is where legal analysts differ on the law's actual meaning and application.
Not a big deal - until it's a big deal?
A spokesman for U.S. Rep. Thomas J. Rooney, R-Fla., who introduced House Resolution 347, the law's congressional designation, the Secret Service requested legislation that would clarify some jurisdictional issues for agents assigned to protect the president. For instance, the spokesman said, "[I]f someone were to jump the fence at the White House, the Secret Service would not have jurisdiction over the trespasser."
Critics say that by dropping the term "willfully," the updated law gives the Secret Service unprecedented power to define what constitutes "restricted areas." They say the law could chill the free speech rights of Tea Party or Occupy Wall Street protesters who are demonstrating in places where the president is present.
"This is the state of mind the government has to prove you had to establish your guilt [the 'intent standard']. 'Willfully and knowingly' means that you need to know you're committing a crime. 'Knowingly' just means you need to be aware you're in a restricted zone, but not necessarily that it's unlawful," writes Gabe Rottman of the American Civil Liberties Union (ACLU).
"H.R. 347 doesn't create any new crimes, or directly apply to the Occupy protests. [...]" he said.
Not so fast, say the critics
Former New Jersey Superior Court Judge Andrew Napolitano, who is a current legal analyst for Fox News, disagrees. He says he believes the law will directly affect the first amendment rights of Americans who want to peacefully assemble and present their point of view.
"Permitting people to express publicly their opinions to the president only at a time and in a place and manner such that he cannot hear them violates the First Amendment because it guarantees the right to useful speech; and unheard political speech is politically useless," Napolitano said during a recent Fox News segment.
Adds Russell Smith, a blogger for the New York Law School's Program in Law and Journalism, "[...] Since police can arrest and remove anyone in violation of [someone jumping the White House fence], the government doesn't need H.R. 347 in order to protect its property from damage and its officials from intruders."
Rottman says that, on the surface, there may not be much to worry about. But the devil, as usual, is in the details.
"Any time the government lowers the intent requirement, it makes it easier for a prosecutor to prove her case, and it gives law enforcement more discretion when enforcing the law. To be sure, this is of concern to the ACLU. We will monitor the implementation of H.R. 347 for any abuse or misuse," he said.
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